Excelsior Correspondent
JAMMU, Aug 10: High Court of Jammu & Kashmir and Ladakh has held that an employee is free to challenge the conditions of his/her appointment order in case the same is not in conformity with law and he is not estopped under law to question it at any stage.
These observations have been made by Justice Wasim Sadiq Nargal while directing the respondents to place the petitioner in the grade of Rs 5000-10100 (pre-revised) retrospectively from the date of his initial engagement order—20.11.1996.
“The respondents shall reckon all the monetary benefits on the basis of difference of pay between grade Pay Rs 4000-6000 and Rs 5000-8000 and shall pay the same to the legal heirs of the petitioner, as having been appointed as Sanitary Inspector with Diploma Holder along with all consequential benefits retrospectively from the date of his initial appointment–from 20.11.1996”, High Court further directed.
“Once, the respondents have admitted their mistake of granting the lower pay scale to the petitioner in spite of the fact that the petitioner was entitled for the higher grade being diploma holder, then it was incumbent on the part of the respondents to have rectified their mistake by granting him the benefit of the grade retrospectively from the date when the petitioner came to be appointed along with all consequential benefits”, High Court said.
Justice Nargal further said, “inaction of the respondents has denied the petitioner’s right to be considered for promotion and his right to get equal salary as is being paid to similarly situated persons. This inaction on part of the respondents is highly discriminatory in nature and has tendency to deprive the petitioner of his legitimate right to get his salary”.
The petitioner was a diploma holder appointed to the post of Sanitary Inspector in November 1996 but was erroneously placed under a lower pay scale applicable to Sanitary Inspectors without diploma. The error was rectified prospectively in 2010, following merger of both grades and petitioner sought this rectification to be applied to him retrospectively particularly in matter of seniority.
Respondent’s counsel argued that the petitioner’s appointment was contrary to the rules and that he should fulfill the criteria for the next higher post before being eligible for a higher grade pay.
After hearing both the sides, Justice Nargal observed, “respondents cannot be allowed to blow hot and cold in the same breath when the respondents, on the one hand, have recommended the case of the petitioner for the release of the grade retrospectively from the date of his appointment on the basis of excellent APRs and on the other hand, the respondents have taken altogether contrary stand in their objections that the appointment of the petitioner is contrary to the rules and hence the petitioner is not entitled for further promotion”.
Applying the doctrine of “equal pay for equal work”, Justice Nargal held the petitioner entitled to the higher grade pay retrospectively from the date of his appointment, adding “there is an admission on the part of the respondents that the petitioner was entitled for the said grade retrospectively from the date he came to be appointed while recommending his case by virtue of communication dated 31.12.2009.
The respondents thereafter rectified their mistake by granting the said grade to the petitioner prospectively with effect from 2010 instead of 1996 by virtue of order dated 27.10.2010. Thus the action of the respondents was violative of mandate of equality enshrined in Article 14 of the Constitution of India, as similarly situated employees having diploma continued to get the grade with the sole exception of the petitioner who has been discriminated without any fault, High Court said.
In light of these observations, the bench quashed the impugned seniority list of non-diploma Holders Sanitary Inspectors to the extent of placement of the petitioner in the grade pay of Rs.4000-6000 and the respondents were directed to place the petitioner in the grade of Rs.5000-10100 (pre-revised) retrospectively from the date of his initial engagement order i.e. 20.11.1996.
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